Article 370 Judgment Constitutionally Flawed, Bad In Law : Fali S Nariman

Reflecting upon the aftermath of the Supreme Court's decision to uphold the constitutionality of the abrogation of Article 370, Senior Advocate and Jurist Mr Fali S. Nariman spoke extensively to Journalist Karan Thapar in his recent interview with The Wire.

At the outset, Mr. Nariman opined the judgment to be politically welcomed as it ensured bridging the gap between Jammu and Kashmir and the rest of the nation. The removal of the special status as historically conferred upon the former princely state, in the political sense upholds the principle of national unity. However, in terms of legal correctness, he expressed:

“Welcome only as so far it has facilitated a complete integration of Jammu and Kashmir into the union of India which is really a union of the federation of states, which is a good thing. But is constitutionally flawed because in my personal view what has been done by the Hon'ble Court is not in accordance with the provisions of the Constitution.”

The jurist also asserted that without intending any disrespect to the Hon'ble Court, he thinks the judgment to be “Totally erroneous and Bad in Law”

Mr Thapar asked Mr Nariman if there was a certain political motivation behind the content of the judgement. The jurist stressed that it was important not to jump to such conclusions and attach political underpinnings to the verdict of the Supreme Court.

“No no! That's absolutely wrong, we jump to these conclusions that someone is politically motivated because they have won an election and not won an election and so on, it's all wrong. This is a view which was expressed by the court and please note that under the constitution you and I are bound, it's binding on all of us.”

On Constitutional Order 48 of 1954 :

Order 48, Mr Nariman explained, is a Presidential Order clearly saying that an amendment under Article 368 of any provision of the constitution would only affect Jammu & Kashmir if a Presidential Order applied it under Article 370.

The same Order also provided that Article 3 of the Constitution concerning the Parliament's power on the formation of new and altering boundaries, areas or names of existing states would apply only with a “superadded” condition. This condition is, that without the consent of the State Assembly, the area of Jammu and Kashmir cannot be diminished by the executive or the central legislature.

Faults in reducing the status of Jammu & Kashmir to a Union Territory :

While deliberating on the conversion of Jammu and Kashmir's status of being a state to that of now being a Union Territory, Mr Nariman raised two main concerns.

Firstly, under Article 3, the Parliament, without taking into account the views of the State Assembly could not have diminished the boundaries of the State of Jammu and Kashmir; secondly, Article 3 nowhere provides for reducing the status of a State to a UT.

He additionally pointed to the fact, that Jammu and Kashmir as a state had an enormous 39,145 square miles of area in 1950 but by the Orders passed in August 2019, the area of the state was diminished. 22,856 square miles was taken out of the 39000, implying that the area which was diminished much more than half.

He further stated, “And then Ladakh was created as a Union Territory (UT), and the consent of the legislative assembly was required which was just lifted a day before the abrogation.”

For any Bill related to Article 3, the President, even before proposing it to the Parliament, is required to send it before the legislative assembly of J&K for its opinion. The Jurist expressed “Now there is no legislative assembly, it's a dead letter!”

Reading Article 3, he explained the requirements for altering the boundaries of Jammu and Kashmir, “There must an assembly be in existence, no.1 before the bill is introduced in the Parliament, it should go to the State Assembly for its views….You see even a bill could not be introduced in Parliament unless the views are ascertained in the Assembly, now there's no assembly- views can't be ascertained, the President has to send that bill, there is no question, all this is the requirement of the Article.”

Further on reducing a State to a UT, he stated that “ Article 3 does not permit by law to reduce a state to a UT and that's important, namely because the UT under our Constitution does not need to have a legislative assembly, it may have but it does not need to have. But a State must have an elected legislative assembly, that's the point ”

With the creation of the UT, Jammu and Kashmir became a “centrally controlled territory” and no longer does the six periods limitation on imposing President's Rule under Article 356 apply.

A mistake to amend the meaning of “Constituent Assembly” under Article 367:

By the Constitutional Order 272 (CO 272) of August 5, 2019, Article 367 which provides the manner of interpretation of certain terms in the Constitution amongst other things was inserted with clause 4. The sub-clause d of the amended Art.367(4) provided that the term 'Constituent Assembly' as mentioned in the proviso to Art.370 shall be read to mean the Legislative Assembly of the State.

The proviso under the now abrogated Article 370 required the recommendation of The Constituent Assembly of the State of Jammu & Kashmir as a necessary condition for abrogation to be done.

In June 2018, the State Governance saw a political breakdown with the Bharatiya Janata Party withdrawing support from the alliance led by Mehboob Mufti's People's Democratic Party (PDP) which eventually led to the imposition of Governor's Rule and was followed by the imposition of President's Rule on December 19, 2018.

In light of the above, Mr Nariman expressed, “What is the point of saying legislative assembly, when you know there is no legislative assembly in the first place? What is the use of striking down a useless amendment? I am not on whether the amendment was good or bad, the Court has said that's a bad amendment…the centre should not have introduced a provision like this when it knew that the Constituent Assembly of Jammu and Kashmir had already come to an end of the pronouncing the Constitution of Jammu and Kashmir”

When asked if the Court erred in concluding that by way of the President's Rule, the Parliament can assume the powers of the State Legislative Assembly, Nariman replied “I am afraid so, yes”

Nariman agreed that while the Court in its majority decision authored by the Chief Justice, held the modifications made to Article 367 as ultra vires Article, it faltered in upholding the abrogation and that the CJI in the logical reasoning “missed the step”.

Reasoning to Uphold Abrogation- “A bit mixed up”:

The Constitutional Order of 1954, which amended Article 368 in specific regard to Jammu and Kashmir, made it mandatory that any amendments with regards to the former princely state have to be done by way of Article 370(1) and not Article.368 of the Constitution.

Remarking upon the said requirement, Nariman said, “But you see they withdrew that (1954 Order) on the 5th of August in anticipation of what they were going to do on the 6th August, 2019”, he expressed that the revocation of the Constitutional Order 48 and issuance of the Constitutional Order 273 which read down Article 370 was done one after the other, suggesting that it was “quite clear that they both were thought of together”.

Mr Thaper further addresses the reasoning given in the majority judgement, “That what essentially is even though the recommendation has not come, because it's not binding, it does not matter. What is affected, when the constituent assembly or the legislative assembly ceases to exist is their power to give recommendations, what is not affected is the President's power to act regardless of the recommendation… now that again is not what the constitution says”

Mr Nariman replied, “It's all a bit mixed up”

According to Mr Nariman, what could have been done was to first repeal the provisio to Article 370, thereafter the Parliament would have complete liberty to revoke the Special Status as by doing so, the requirement of Constituent/State Assembly's recommendation would not needed procedurally.

Future Statehood for Jammu and Kashmir:

Thapar mentioned of assurance given by Solicitor General (SG) Tushar Mehta to the Supreme Court of the restoration of the statehood at some “indeterminant point”. On the issue of whether SG's statement can be made binding on the present and future governments, Nariman expressed the question was not of whether it can be binding but whether the revocation of the statehood was right or wrong. “If it's wrong, then this assurance doesn't help anybody”, he said.

Thapar added “If it is wrong (the abrogation and creation of UTs) ab initio nothing that follows matters”

Does the Judgement set a wrong precedent for the rest of the country?

When faced with the crucial question of whether the removal of statehood in Jammu and Kashmir under the garb of the Jammu & Kashmir State Reorganisation Act 2019 set a concerning precedent for the fate of other states of the Country, Mr Nariman refuted the assertion.

The interviewer asked Nariman whether, in not examining the reorganisation of a state under the President's Rule, the Apex Court has assented to the power of the Parliament in taking similar steps for other states.

Nariman explained, “It's all the temporary provision in the Constitution about Jammu and Kashmir, you can't jump to these conclusions at all, the judgment does not at all permit the centre or the State and to say that it does is of very disastrous consequences. It is all in connection with the state of Jammu and Kashmir and it cannot be read in that manner at all…not at all a precedent for other states”

Thapar then clarified in the concluding segment, whether the errors made in the 370 judgement applied “sui generis” to Jammu Kashmir only, to which the senior constitutionalist agreed that he believes the errors in the verdict have no binding on the notion of centre-state federalism as applied in toto to the rest of the country. 

The discussion culminated with the final question on whether it could be considered a “low point for the Supreme Court” to which Mr Nariman weighed in that there was no such “high or low” per se to analyse, all that concerned him was while the decision was politically correct, but constitutionally flawed. “It was wrongly done”, he said.